Corrected 11:50 a.m. | An opening on the Supreme Court nine months before the midterm elections promised to inject a new urgency into the battle for the Senate majority, with both parties rushing Wednesday to remind voters of the stakes of the upcoming confirmation battle.
An expected announcement from Justice Stephen G. Breyer would mark the fourth time in a row the Senate will face a Supreme Court vacancy in the final year before a federal election.
Unlike the blocked consideration of nominee Merrick B. Garland in 2016 and the confirmations of Justices Brett M. Kavanaugh in 2018 and Amy Coney Barrett in 2020, President Joe Biden’s pick is unlikely to change the ideological makeup of the court since Breyer is the court’s senior liberal member.
So campaign messaging this time is expected to be more focused around issues before the court — including abortion rights, health care access and coronavirus mitigation efforts — on which each party sees its opponents as out of touch with mainstream America.
For Democrats, the vacancy may help change the public’s focus from topics that have weighed on the party’s House and Senate majorities, including their inability to pass key parts of their agenda, high inflation rates and the continued fallout of the coronavirus pandemic.
“This vacancy reinforces the stakes of this year’s election and why we must defend and expand our Democratic Senate majority with the power to confirm Supreme Court justices,” Michigan Sen. Gary Peters, chairman of the Democratic Senatorial Campaign Committee, said in a statement.
Biden’s campaign promise to nominate a Black woman could also serve as a motivator for Black and progressive voters, blocs that Democrats need to turn out if they want to win close races.
Republicans, meanwhile, saw it as an opportunity to remind voters of the power of the conservative justices seated during President Donald Trump’s administration, pointing to elections in 2021 in which the GOP candidates seemed to pick up momentum.
“We’ve seen already with the elections in Virginia and New Jersey that Americans are anxious for any opportunity to provide a check on President Biden’s dangerous agenda,” Republican strategist Rory McShane said in an email. “A vacancy on the Supreme Court, the only remaining check on Biden, will drive Republicans to the polls and spur enthusiasm.”
Line of attack
South Carolina Sen. Lindsey Graham, the second-ranking Republican on the Judiciary Committee, came out Wednesday with a statement apparently geared toward those GOP voters.
“As to his replacement: If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” Graham said.
“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”
That’s an argument Republicans said would have particular weight in the states where Democratic Senate incumbents are defending their seats. The Senate is split 50-50, with Vice President Kamala Harris controlling the tiebreaking vote. Under rule changes implemented by Republicans, Supreme Court nominations are not subject to the filibuster rule that requires most legislation to get 60 votes to advance.
Since a pickup of just one seat in November would give Republicans the majority, expect much of the pressure over the confirmation vote to be focused on Democrats defending battleground seats. According to Inside Elections with Nathan L. Gonzales, four of the five most vulnerable Senate seats up this year are held by Democrats: Mark Kelly of Arizona, Raphael Warnock of Georgia, Maggie Hassan of New Hampshire and Catherine Cortez Masto of Nevada.
The battle over Kavanaugh’s nomination in September 2018, which in the end focused on allegations that he sexually assaulted a woman when they were in high school, fired up Democratic base voters and may have helped boost the size of the party’s House takeover in 2018. But replacing liberal Anthony M. Kennedy with a conservative justice also helped fire up the GOP base, and Republicans that November added two seats to their Senate majority while ousting Democratic incumbents in Florida, Indiana, Missouri and North Dakota.
‘Walk the plank’
Republicans this year appear to be preparing to attack any Biden nominee as too liberal, and aim to punish Democratic senators for following the lead of Majority Leader Charles E. Schumer.
“I predict that Chuck Schumer and whoever is running the White House will force all Democrats to obey and walk the plank in support of a radical liberal with extremist views,” National Republican Senatorial Committee Chairman Rick Scott, R-Fla., said in a statement.
Missouri Sen. Josh Hawley — who, like Scott, flipped a Democratic seat in the wake of Kavanaugh’s confirmation — said on Twitter that Biden faces a choice of nominating “someone who loves America and believes in the Constitution” or “a woke activist.”
It’s possible, however, that Biden’s nominee could attract some Republican votes in the Senate, as some of his judicial nominations to date have. And Democrats are unlikely to get confirmation votes from moderate senators, especially West Virginia’s Joe Manchin III and Arizona’s Kyrsten Sinema, for any nominee that isn’t mainstream.
“Republicans would be doing themselves a great disservice if they mounted a strong opposition to whomever this African American woman is going to be,” said Ross Baker, a Rutgers University political scientist who has written extensively about the Senate. “It would be a big political mistake. They don’t need to do that. This is not a crucial appointment in that it throws the Supreme Court out of balance.”
Strategists who spoke to CQ Roll Call said they would also be watching any incumbent Democrats who are faced with supporting positions of a nominee that could be at odds with their more conservative constituents’ views.
Timing is everything
Breyer’s decision may be coming early enough in the election cycle to potentially mute its impact on the midterms and remove almost any question about who will control the confirmation process.
Even in recent elections where confirmation fights were closer to Election Day, there was no “direct link” between the process and voters’ behavior, said Patrick Murray, director of the Monmouth University Polling Institute.
“It has an impact to the extent that it’s part of a larger narrative, but it’s not going to make or break any race,” Murray said. “It didn’t in 2018 and won’t in 2022.”
This report was corrected to accurately reflect Justice Stephen G. Breyer's name.
Niels Lesniewski contributed to this report.